Laws
Governing Extradition:
A Special Reference to Abu Salem's extradition

Extradition may be briefly described as the surrender of an alleged or convicted
criminal by one State to another. More precisely, extradition may be defined as
the process by which one State upon the request of another surrenders to the
latter a person found within its jurisdiction for trial and punishment or, if he
has been already convicted, only for punishment, on account of a crime
punishable by the laws of the requesting State and committed outside the
territory of the requested State[1].
The purpose of extradition is to bring the
individual within the requesting country’s boundaries in order to make a
determination of guilt or innocence, or to impose punishment[2]. Extradition
plays an important role in the international battle against crime. It owes its
existence to the so-called principle of territoriality of criminal law,
according to which a State will not apply its penal statutes to acts committed
outside its own boundaries except where the protection of special national
interests is at stake. In view of the solidarity of nations in the repression of
criminality, however, a State, though refusing to impose direct penal sanctions
to offences committed abroad, is usually willing to cooperate otherwise in
bringing the perpetrator to justice lest he goes unpunished.
Traditionally, extradition law is based on treaties. Two states typically agree
in
a bilateral treaty to surrender to each other fugitives charged with any
offences
considered extraditable under the agreement. A state seeking extradition of a
fugitive (the requesting state) addresses its requests to the government of the
state where the fugitive is present (the requested state), and the government
invariably acts upon these requests. Domestic extradition statutes occasionally
supplement substantive treaty law, but in general they merely specify
extradition
procedures[3].
The extradition law that developed from these beginnings assigns a major role to
government officers, leaving a very restricted one for courts. The law prevents
judges from inquiring into judicial and penal conditions in the requesting
country
and creates a pattern of judicial deference to government decisions at all
levels
of the process. It was after early nineteenth centuries that sovereigns began to
concentrate on extradition treaties for common crimes because of the development
of new, better, and quicker forms of transportation, which allowed criminals
greater ability to commit crimes over a larger region[4].
2. Position in India:
In India the provisions of Indian Extradition Act, 1962, govern the extradition
of
a fugitive from India to a foreign country or vice-versa. The basis of
extradition
could be a treaty between India and a foreign country. Under section 3 of this
Act, a notification could be issued by the Government of India extending the
provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is
received directly from the concerned country or through the General Secretariat
of
the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central
Bureau of Investigation immediately passes it on to the concerned police
organizations. The red notices received from the General Secretariat are
circulated to all the State Police authorities and immigration authorities[5].
The question arises that what action, if any, can be taken by the Police on
receipt of an information regarding a fugitive criminal wanted in a foreign
country. In this connection the following provisions of law are relevant:
# Action can be taken under the Indian Extradition Act Article No. 34 (b) of
1962. This act provides procedure for the arrest and extradition of fugitive
criminals under certain conditions, which includes receipt of the request
through
diplomatic channels ONLY and under the warrant issued by a Magistrate having a
competent jurisdiction.
# Action can also be taken under the provisions of Section 41 (1) (g) of the
Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without
a
warrant, however, they must immediately refer the matter to Interpol Wing for
onward transmission to the Government of India for taking a decision on
extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken
under Section 188 Cr.P.C., 1973 as if the offence has been committed at any
place
in India at which he may be found. The trial of such a fugitive criminal can
only
take place with the previous sanction of the Central Government.
As far as India is concern this issue is always in light because of number of
cases, such as Nadeem’s extradition for involvement in Gulsan Kumar Murder case
&
demand of Dawood for involvement in Bombay Bomb Blast of 1992, in which we are
still waiting for positive response. When one talks of extradition, quite a few
names come to mind. The most tragic case was that of Rajan Pillai, who was
sentenced to jail in Singapore for economic offences. He, however, took refuge
in
India. The Singaporean government requested his extradition. He would possibly
have been sent back to Singapore, but he died under mysterious circumstances
while
in judicial custody in the Delhi jail. Underworld don and prime accused in the
Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife
Monica Bedi is also a land mark in this regard.
Most of us know about the concept of extradition rightly or wrongly with respect
to the cases named above but this tem paper examines one of the important aspect
of extradition which is in relation with extradition of political offenders
which
though is not in much lime light as far as Indian Public is concern but much
debated among the others as well as among intellectuals in India.
Intervening in the discussion on the draft resolution on international terrorism
in the ongoing 70th Interpol Annual General Assembly at Budapest(2001)[6], the
CBI-Interpol India chief, Mr. P.C. Sharma, urged member-countries to give
serious
thought to putting in place certain legislation relating to extradition of
wanted
terrorists.
"It is not sufficient to merely locate and identify suspected terrorists. At
this
stage, it is imperative on all nations to demonstrate the will to help in the
fight against terrorism. This can be done only by handing over the wanted
persons
who could be made to face fair trial and answer for the consequences of their
action,"
As India has not been successful in getting criminals who have taken refuge in
Western countries returned to the subcontinent, there is a growing feeling in
government circles that those countries are siding with the accused.
3. Abu Salem's extradition:
Ø 3.1 The Story:
When Abu Salem entered the US, they tipped off the Federal Bureau of
Investigation
(FBI), which tailed him. Abu managed to get out of the US and entered Portugal
through Lisbon after rigging up his papers. They went on to tip the Lisbon
authorities that immediately seized the Indian gangster. And, the tables turned.
Abu Salem found himself on the receiving end and, the Mumbai police, on their
part
had, scores to settle with the gangster whose extradition from Portugal is
shrouded with as much controversy as his role in the city's blackest blasts[7].
The extradition of underworld don Abu Salem was a tribute to the co-ordination
among the Central Bureau of Investigation, the ministry of home affairs, the
ministry of external affairs and the Indian embassy in Lisbon, Portugal, and was
made possible by the excellent co-operation received from the Portuguese
authorities. The extradition was a landmark event for many reasons[8].
Ø 3.2 The Difficulty& The International Obligations:
There is no extradition treaty between India and Portugal. The absence of such a
treaty initially created legal difficulties. Therefore this becomes an area
where
political considerations play a prominent role, unless there is an applicable
bilateral extradition treaty.
Indeed, a country does not need a treaty to decide that a fugitive found within
its jurisdiction should be extradited to another country that requests
extradition. It can, if it wants to, take that decision without any treaty
obligations whatsoever, even by exercise of executive discretion. Where there is
a
bilateral extradition treaty, the states party to it normally goes by its terms.
The process of extradition usually involves interposition of the Judiciary in
both
countries, and this has permitted the emergence of some discernible principles
of
international law governing extradition[9].
International law recognizes four points as a basis of exercise of criminal
jurisdiction by a sovereign state, namely, territoriality (the state where the
offence has been committed), nationality (the national state of the offender or
the accused), the protective principle (the state whose essential economic or
other interests have been directly and adversely affected by the offence), and
universality (the offence being an international crime)[10].
While these are situations largely governed by the political relations between
the
two countries involved, yet even a political/administrative decision to
extradite
or deport is likely to go before the law dispensing authorities including the
judiciary in the extradition-requested state[11].
Indian government sought his extradition under the United Nations Convention on
Suppression of Terrorism of 2000 under which all member nations have to help
each
other in the war against terrorism. Portugal and India are both signatories to
the
Convention. In the meantime, the Portuguese court sentenced Salem and his
girlfriend Monica Bedi to four years imprisonment for illegally entering and
staying in Portugal on forged passports. The court also ordered that their
extradition could be made only after they have completed their prison term. When
the CBI got to know of Salem's plea the Portuguese lawyer representing the
Indian
government rushed to the court to remind the judge about his previous order
about
extraditing the duo on completing their 4-year sentence[12].
Ø 3.3 Judicial Approach: Obligating the Extradition Agreement
The Portuguese court ordered their extradition after the Indian government,
through its lawyer, gave a solemn assurance that if convicted they would not be
sentenced to death. The assurance was given since European law prohibits
extradition of any accused to such a country where capital punishment is in
vogue.
It is essential here to give a glance at the earlier decided case of
Gill &
Sandhu[13]. In early 1987, the government of India requested the United States
to
extradite Ranjit Singh Gill and Sukhminder Singh Sandhu, claiming that the two
were responsible for robberies and murders committed in the Punjab, in India.
Magistrate Ronald J. Hedges, however, found that he could not consider evidence
of
the mistreatment to which Gill and Sandhu could be subjected if returned to
India.
The court stayed their release pending an appeal by the Indian government. In
reaching his decision, Judge Robert J. Sweet considered four primary issues: (1)
the scope of the district courts’ review of extradition proceedings; (2) the
fairness of the hearing procedures; (3) the probable cause determination; and
(4)
the possible antipathetic treatment awaiting Gill and Sandhu in India.
Also in the case of Daya Singh Lahoria v. Union of India[14] The grievance of
the
petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts
in the country have no jurisdiction to try in respect of offences which do not
form a part of extradition judgment by virtue of which the petitioner has been
brought to this country and he can be tried only for the offences mentioned in
the
Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences
other than the offences mentioned in the extradition order as that would be a
contravention of Section 21 of the Extradition Act as well as the contravention
of
the provisions of the International Law and the very Charter of Extradition
treaty.
Therefore in view of these it is clear that both on international law as well as
the relevant statute in this country entail that a fugitive brought into this
country under an Extradition Decree can be tried only for the offences mentioned
in the Extradition Decree and for no other offence and the Criminal Courts of
this
country will have no jurisdiction to try such fugitive for any other offence.
4. Conclusion:
As per the Portuguese Constitution, no one can be extradited in respect of
offences punishable by death penalty under the law of the state requesting
extradition[15].
Hence, Section 34 C of the Indian Extradition Act, 1962, will be applicable
which states that "notwithstanding anything contained in any other law for the time
being in force, where a fugitive criminal, who has committed an extradition
offence punishable with death in India, is surrendered or returned by a foreign
State on the request of the Central government."
And therefore the laws of that foreign state do not provide for the death
penalty
for such an offence, such fugitive criminal shall be liable for punishment for
life only for that offence.
Extradition has been defined by
Oppenheim[16] as "the delivery of an accused or
a
convicted individual to the State on whose territory he is alleged to have
committed, or to have been convicted of, a crime by the State on whose territory
the alleged criminal happens for the time to be." The right to demand
extradition
and the duty to surrender an alleged criminal to the demanding State is created
by
a treaty.
As the question of surrendering an alleged criminal to the demanding State
always
involves the question of human rights, therefore the essence of maintaining the
sanctity of the agreement (that Salem shall not be awarded death penalty) shall
be
attributed to the concept of human rights involved in extradition laws, which
lays
emphasis on the law of the country in which the offender seems to be at the time
of extradition.
--------------------------------------------------------------------------------Bibliography
[1] ‘Interpol Guide-Extradition’ http://cbi.nic.in assessed on 28th February,
2006
[2] The United States defined extradition to
be "the surrender by one nation to
another of an individual accused or convicted of an offence outside of its own
territory and within the territorial jurisdiction of the other which, being
competent to try and punish him, demands the surrender." 18 U.S.C.A. § 3181
(1988). See also the joint declaration of judges Evensen, Tarassov, Guillaume,
anf
Aguilar Maudsley, The Lockerbie Case, ICJ Reports, 1992, pp. 3, 24
[3] This pattern holds true especially in common law countries. In the United
States, for example, the only extradition statute, the Extradition Act of 1848,
18
U.S.C. §§ 3181-3195 (1988), does no more than specify the procedures by which a
foreign state must request a fugitive, and by which officials must arrest and
surrender the fugitive. An alternative formulation occurs when a state
promulgates
extradition law in domestic legislation, and then moulds extradition treaties to
fit its national law.
[4] Perry, G.C. The Four Major Western Approaches To The Political Offense
Exception To Extradition: From Inception To Modern Terrorism, 40 Mercer L. Rev.
709
[5] Supra Note 1
[6] ‘India calls for global laws on extradition’ The Hindu (New Delhi, September
27, 2001)
[7] Gajanan Khergamker, ‘Don to Doom’ http://hardnewsmedia.com assessed on 2nd
March, 2006
[8] http://in.rediff.com/news/salem05.html (assessed on 4th March, 2006)
[9] V. S. Mani, ‘Extradition & international law’ The Hindu (New Delhi, December
17, 2002)
[10] Ibid
[11] M. Basheer Hussain, ‘India: Keeping to the Rule of Law Certain Aspects of
Extradition Treaties’ (Asian Human Rights Commission) <http://ahrck.net>
[12] Supra Note 8
[13] In re Singh, In re Gill, 123 F.R.D. 140 (D.N.J.1988); In re Singh, In re
Gill, 123 F.R.D. 127 (D.N.J.1987); Gill v. Imundi, 715 F.Supp. 592
(S.N.N.Y.1989);
and Gill v. Imundi, 747 F.Supp. 1028 (S.D.N.Y.1990).
[14] AIR 2001 SC 1716
[15] ‘Portugal - Constitution’ <http://www.oefre.unibe.ch/law/icl/po00000_.html>assessed on 4th March, 2006
[16] Oppenheim, International Law 645-46 (H. Lauterpacht ed. 7th ed. 1948) as
cited by Perry, G.C., The Four Major Western Approaches To The Political Offense
Exception To Extradition: From Inception To Modern Terrorism, 40 Mercer L. Rev.
709